Road Traffic (Evidentiary Provisions) Amendment Bill

by Vickie Chapmanon December 04, 2018

Second Reading

I rise to speak on the amending bill to the Road Traffic Act 1961 to deal with the Lidar traffic speed analysers. I do not think I have actually ever seen one of these, but I understand that we have 190 of them in South Australia and that they are used to aid and support the detection and ultimate prosecution of speeding users of the road. That is not to say that I am not without some fault in this area. I am probably South Australia's worst driver, so I will not be talking about driving records.

I was rather disappointed to hear the lead speaker for the opposition indicate that he was the only speaker. I was looking forward to hearing the member for West Torrens, who is the sort of king of road traffic offences, the lead foot from the west. Nevertheless, it seems as though we are going to be without his wisdom in relation to this.

I am a little disappointed to hear that there is not going to be—or so far—any contribution from the opposition. As much as I welcome the indication from the lead speaker for the opposition that they are supporting the bill, I would have thought that, whilst we are certainly looking forward to the passage of this bill through both houses of parliament, let's not forget that the former government over two years, having been alert to this problem, did nothing about it.

I am a little concerned that the opposition, under the guise of having to deal with something quickly, is not coming to the parliament to perhaps explain why the former government had done nothing since 2016, especially as the Leader of the Opposition is now in this parliament and able to make a contribution on this. As the former police minister in the former government, he should make a statement about why we did not need any legislative reform to deal with the defects that were identified and highlighted back in 2016. The other thing I would note for the record is how sad I am that the Hon. Bob Such is not here in this parliament to hear this debate finally. Those of us who have been here for some time—I know the Clerk of the House has been diligently working here for a long time—can remember the passionate speeches, many of them—

And the member for Florey, of course, would remember from about six metres left of her in the chamber was the Hon. Bob Such plaintively pleading for justice in respect of a speeding offence which he had received and for which he was seeking some redress. All he wanted at the time was the opportunity to have the speeding device analyser produced for the purposes of expert examination and testing. He was never granted that. He was certainly passionate in his pleas to us in the parliament to do something about it. I am very sad that he is not here to finally see this day come after a litany of litigation about these matters, including his own case, which I think is meritorious to review.

As the lead speaker, our Minister for Police pointed out that this is not a piece of legislation that is coming to us to remedy any defect in the speed detection analysers that we are talking about, these Lidar guns. It is all about the certification and a process, which was introduced by the previous government, essentially to try to minimise the cost and inconvenience to police as prosecution witnesses in these types of cases. That is meritorious, obviously, to present a model which will try to minimise costs but, when it is deficient from the point of view of providing compliance with the principles of the law, then obviously we as a parliament have to revisit it.

In this case, the Commissioner of Police announced last Thursday that, on the advice they had received, he was withdrawing 190 of these devices from use in the detection and prosecution process for those who were allegedly committing speeding offences and that, as a result of the deficiency in certifications, he would be recommending and requesting that the parliament initiate some statutory reform. Consistent with that, I commend the Minister for Police for promptly advising the parliament, and thereby the public of South Australia, of what we were facing and what needed to be remedied.

As quickly as possible, he alerted the public to the fact that this government would institute a statutory remedy to ensure two things, most importantly. Firstly, although some pending prosecutions would be lost, there will be active re-use of the guns with that certification, with a new certification procedure to ensure that it could continue; secondly, and most importantly, to make sure the public is aware that this government takes road safety very seriously. We need to ensure that we act as soon as practicable, particularly as we have the holiday season approaching, which seems to attract a higher level of injury and death on our roads, and we have.

In that regard, we welcome the opposition's prompt consideration of this matter in advance of what would normally be the process of delay to enable consultation and the like. The bill before us has the blessing and approval of the Commissioner of Police. I want to mention that because last week, when the commissioner announced the need for statutory remedy, he sought additional clauses to deal with the remedying of this matter, which at first blush seemed to be a reasonable request.

He requested a further amendment to section 175 to permit the prosecutor to tender a certificate that the traffic speed analyser was used by the respective police officer in accordance with the appropriate Australian standard and, if there is no appropriate standard, in accordance with the manufacturer's specification as proof of the facts certified in the absence of proof to the contrary. This was deemed later to be unnecessary under review of the Crown Solicitor's advice.

SAPOL had also requested an additional amendment based on section 141—that is the rebuttal of evidence concerning traffic speed analysers—of the Road Transport Act 2013 (New South Wales) to designate that evidence in court that contradicts or challenges the accuracy or proper operation of a traffic speed analyser (that is not a photographic detection advice) may only be admitted from a person who has relevant specialised knowledge. Again, this was identified as being unnecessary in respect of the process of reforms.

I think it is fair to say that whilst one tries to close every loophole, with legislation, sometimes by repeating what is already the case or what is a different process can cause confusion, and the last thing we want to do is create a situation where there is a process in respect of admissibility, burden of proof and/or the obligation as to what the terms and conditions of a challenge would be if they are inconsistent with another process.

That is the last thing we want to do: create another problem that would challenge the court's capacity to operate. Again, I commend the Minister for Police for acting on the matter and place on the record my appreciation of the very prompt work undertaken by the Crown Solicitor's Office in the Attorney-General's Department to try to ensure that the terms of reform are going to be the most appropriate.

I would like to say something about what happened in July this year because Justice Peek of the South Australian Supreme Court handed down three judgements: Police v Hanton [2018] SASC 96, Police v Miller [2018] SASC 97, and Police v Henderson [2018] SASC 98. All three judgements, as identified by the Minister for Police, dealt with the question of operational police using traffic speed analysers, the Lidar device, in relation to speeding offence detections.

At the trial, prosecution and the officer of the police—that is, of the rank of inspector or above—tendered a certificate pursuant to section 175(3)(ba), under Evidence, of the Road Traffic Act. Members will know how that reads; it sets out a certain documented procedure for the proceedings of an offence against the act in the use of these devices. Justice Peek, in these judgements, held that the prosecution was not entitled to prove the accuracy of the TSA through tendering the certificate. Obviously this brought into question the capacity to successfully prosecute in those cases and in a number of others.

Without revisiting those, because I think they are well known to members, there are two things I want to place on the record. One is the police procedure as best I understand it, what they have been doing, because I want it to be clear, and I think the parliament is entitled to appreciate, that there have been existing practices in terms of how these things have operated. My understanding is that SAPOL, in accordance with the Australian standards and the manufacturer's handbook for the two approved traffic speed analysers, requires operators to test their particular traffic speed analyser unit before and after commencing operations every day.

Current testing processes used by SAPOL involve the operator conducting a series of field tests. These field tests are described by Justice Peek in the decisions I have referred to as the five-step test plus calibration check. They comprise: (a) a visual test, which is checking for damage to ensure the calibration is current and seals are not damaged or missing; (b) a self-test of the internal circulatory unit by pulling the trigger or turning the button on the check for an error code; (c) the display test, checks the in-scope and rear panel display segments to ensure they are working; (d) scope alignment test to ensure the scope is aligned with the transmitted light beam; and (e)fixed-distance zero velocity test confirms the unit's ability to accurately measure time and calculate distance and speed.

The fifth test, the fixed-distance zero velocity test, involves measuring the velocity of a stationary object from a fixed and known distance away. For example, the speed gun is trained on a stationary target 20 metres away and returns a reading of zero kilometres and 20 metres distance. If the speed gun returns a reading within plus two or minus two kilometres of the true velocity zero, and a reading within plus 20 or minus 20 centimetres of the true distance of 20 metres, the speed gun passes the test.

In accordance with the Australia Standards, a speed gun must be laboratory calibrated every 12 months. This involves testing the device using the simulator method prescribed in appendix A of AS4691.1 to ensure that the speed measurements are accurate within a range of plus 2 or minus 3 km/h and range measurements are accurate within a range of plus 0.3 or minus 0.4 metres. A certifying officer under section 175(3)(ba) receives information confirming that the speed gun has passed the five-step test on the day of the detection, and a certificate confirming the speed gun has been laboratory tested within a period of 12 months prior to the detection.

There is a certain process of the evidentiary form to be completed. That process preceded, I suppose, what has been the then reliance on the certificates, on the face of it, to determine that the burden of proof shifts then to the defendant to establish to the contrary rather than the evidentiary burden of proof on the police.

Apart from being disappointed that the former government did not fix up this mess and Justice Peek having to deal with a number of these matters, I think it is important to appreciate that this is not something that the former government would have been blind to, because there have been previous cases. Let's just be clear: Justice Peek concluded in his determinations that if a defendant can point to sufficient evidence in the case that the averred specified tests did not occur at all or, if they did occur, they were not capable of establishing or did not establish the specified level of accuracy, the main presumption may, ipso facto, fall to the ground.

Both before and after the Young case, there were a series of cases in which the appellant failed to adduce sufficient evidence to discharge the onus. One, in Such v Police—that is, the Hon. Bob Such —it was argued as a matter of logic and science that a test involving a fixed object could not give rise to a valid result of plus 2 or minus 2 km/h because the test described did not involve measuring the accuracy of the speed gun against a moving target.

Those tests were incapable of resulting in a measure of accuracy of speed assessment which could be assessed as plus 2 or minus 2 km/h. The Full Court concluded in the absence of evidence having been adduced at trial that no conclusion can be reached by this court about the suitability of the fixed-distance check to assess the accuracy of speed measurement.

In the case of Young, the appellant tendered evidence regarding how the fixed-distance test should be conducted. The evidence established that the measured distance used by the other officer to conduct the fixed-distance test were measures to be slightly more than prescribed. The attempt to impugn the test failed. The appellant called no expert evidence as to the meaning and significance of the factual matters upon which he sought to rely. There was sufficient evidence to constitute proof to the contrary.

In the case of Wyatt, the magistrate concluded that, as a matter of common sense, the tests do not show the accuracy of the device and clearly not within the purported limit of error. Justice Kelly in that case held that simply raising questions about the testing process in cross-examination did not prove on the balance of probability that the tests were incapable of showing the accuracy of the device.

In Butcher No. 1, which has been referred to, the defendant submitted that the presumption was displaced because the certifying officer only had before them a notebook containing the words 'test' and 'two times'. It was submitted without evidence of the actual test performed and the results of those tests. The certifying officer could not be satisfied of the matter certified. In a passage that was implied but not adopted by Justice Peek in the Hanton and Miller cases, Justice Stanley stated:

A submission that the police officer could not as a matter of fact have been satisfied with the matter certified in the document misunderstands the very intent and purpose of the statutory provision. The purpose of the certificate is to establish a statutory presumption without regard to the facts. In effect, it reverses the onus of proof. It shifts the onus to the person to discharge the evidentiary burden of disproving the facts certified in the document. That is not achieved by pointing to the absence of sufficient evidence of the facts certified before the relevant police officer.

Butcher No. 2 was also a decision of Justice Stanley in 2016. Much has been said about that case, particularly by the former minister for police, Mr Malinauskas. I am disappointed that we have not heard from the opposition as to why all these matters were left unattended to, but let us be clear: we are sorting the mess out. It is another Labor mess. I am very proud of our Minister for Police in getting onto this immediately, and we will ensure that this is remedied as quickly as possible.